Who gets custody of our child?

1. Introduction
2. What is custody?
3. Custody in the USA
4. Why do people talk about custody?
5. What is the equivalent to custody in the UK?
6. What happens if ask for custody in court?
7. Conclusion
8. FAQ

Introduction

I’ve worked in family law for almost two decades now. In that time, I’ve heard the word `custody‘ used constantly. But in the long time I’ve helped mums and dads in the family court for their children it’s never actually had any legal meaning. It’s worth pointing out that I’m not a solicitor – I’m a McKenzie Friend. That’s someone who helps people represent themselves.

But back to the topic…everyone knows what custody is, right?

Or do they?

If you’re separating from your partner/spouse thinking about what happens to the children is probably the biggest thing you’re worrying about (along with `Where am I going to live?’ and `How will I pay the bills?’) You’re going to be speaking to your friends and family about it and I 100% guarantee they’re going to be using this word. The one that doesn’t actually mean anything (if you’re in England or Wales).

You’re probably reading this because you want a little more certainty in an uncertain future. I get that. I don’t blame you. It’s a scary prospect, probably costing you sleep and causing you worry. Some information on this can only be a good thing.

You’re probably here because you’ve Googled about custody. It’s a good place to start and this post will give you some info and clarity to help answer a few of the questions you have and put you in a position to give you the chance to think about what needs to happen next.

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What is custody?

Here’s the biggie. You should be asking this if you’ve searched for `Who gets custody?’

The problem is you’re not going to find the answer very helpful (if you live in England or Wales). That’s because…there’s no such thing in English or Welsh law. Custody has not been a thing since 1989 when the Children Act came into force. It has no legal meaning. Which means there is no definition of what it is.

The closest it comes to mentioning it is in Section 8:

In this Act —

“child arrangements order” means an order regulating arrangements relating to any of the following—

(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person;

Going to court and asking for `custody’ is the same as walking into McDonalds, asking for a burger that doesn’t exist and then being surprised when you’re told there’s no such thing so they can’t give it you. Or worse still, you’ll get something they *think* is what you’re asking for. But it probably won’t be.

When people talk ask `Who gets custody’ (sometimes saying `full custody’) they mean one of the following:

1. They are completely in charge of the children and their ex doesn’t get a say in anything.
2. The children stay with them every single night and never with their ex.
3. The children never see their ex.
4. They allow the children to see the ex when they choose.
5. A combination of the above.
6. The police will bring the children back if the ex doesn’t hand them over when told to.
7. Something else.

It’s not uncommon for someone to say (maybe you?) `Yes, but everyone knows what custody means!’ I’ve been told this often – but no one can actually agree on what it means. The same goes for the court – it’s got certain powers under the Welfare Checklist – and custody isn’t one of them (although it does have wide-ranging ones).

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Custody in the USA

I blame Hollywood and US courtroom dramas.

If you’re not in America you probably picture a court as something looking like a Greek temple, with huge steps leading up to the marbled hall. A courtroom with the Stars and Stripes behind a gavel-banging judge and hotshot lawyers shouting `Objection!’, asking for `continuances’ and requesting the court to `strike that motion’. Like I say – I’ve worked in family law (in England and Wales) for almost two decades…but those terms? Your guess is as good as mine.

So I’ll caveat this by saying that I know very little about law in the United States. From what I know, the USA has different laws in each of its states. Each state is its own jurisdiction, and lawyers—unlike solicitors or barristers in the UK—can only practise in the state where they’re registered.. I’ve been in touch with a few American lawyers over the years – Sharie Reyes Albers is a great example. I see her output online and it’s really interesting to see the similarities and differences with law this side of the Atlan

It’s possible for them to register in multiple states. But the law in each state is distinct.

In at least a few states custody is a thing. And a divorce case will cover children, finance and divorce in one case – as opposed to England and Wales where they’re all separate.

If you google enough you may find this definition of custody (on an American site):

The parent with custody controls the decisions pertaining to the child’s education, religious upbringing, and health care. Courts have the option of choosing one of several types of custody. Temporary custody grants custody of the child to an individual during the divorce or separation proceeding. Exclusive custody endows one parent with all custody rights to the exclusion of the other parent. 

Here, it’s completely possible to get all of those things ordered by the family court here. The same results can be achieved…but it’s more complicated because the legal definitions and powers of the court are different.

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Why do people talk about custody?

Great question! I’ve already mention the American influence over people’s ideas. But there are other factors too:

1. People don’t know the law.
2. Custody was a legal term in the UK back in the dim, distant past.

Read the Children Act— you won’t find the word mentioned even once. Google it and it’ll be everywhere – on social media, in discussion groups…and on the websites of anyone who works in family law (including this one). Google provides answers to the questions everyone is asking…and everyone is googling custody because they don’t know different (welcome to this blog post!)

I (and my family law colleagues) mention it not because it’s a thing…it’s because everyone is searching the term (including you, probably). It’s not because it has any legal meaning and the fact you are going to find it on so many websites and so much literature produced by professionals doesn’t mean it is a thing.

I’m not here to be pedantic about it or to tell you off for using the `wrong’ legal terms either because you don’t work in family law and why would you? I don’t want to be that legal person – telling you off and playing semantics with you when all you’re looking for is a straight answer.

So here we are.

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What is the equivalent to custody in the UK?

It’s impossible to answer this question without knowing what you think custody means.

Not much help, I know. When people talk about custody they seem to think there are ready-made orders that provide for everyhing…nice and simple. But the reality is much more complicated.

Some parents may like the idea of custody because it is black and white: One parent gets the kids and can do what they like without having to deal with an ex partner they’re not fond of and don’t want to communicate with. That does happen in the UK – mainly when one parent walks away completely or has done something extreme that means they are completely unsafe around their children.

Like I mentioned earlier, the court can effectively order this—even though it’s no longer called custody.

Let’s break it down….there are several factors and components that affect your relationship and time with your children. Here are the components that make up `custody’ as far as I can tell.

1.) Parental Responsibility (PR)

All mothers have PR by default. Fathers do too—if they’re married to her when the child is born. Unmarried fathers gain PR if they’re on their child’s birth certificate, a court has made an order for them to do it or everyone with PR completes a C(PRA1) form.

PR doesn’t guarantee contact.

Holders or PR have a right to be consulted on things like education, medical treatment, etc. A child’s name can’t be changed without their consent, their permission needs to be granted for a child to travel out of jurisdiction (i.e. outside England or Wales unless their ex partner has a residence order). They can make applications without the court’s permission (unless they are subject to a 91(14) barring order).

2.) `Lives with’ (also known as residence) orders

If I had to say what I thought most people meant when they talk about custody, I’d say it’s a `lives with’ (residence order). Pro-tip – they’re the same thing but people still talk about `residence orders‘ because it trips of the tongue a lot more easily. In this case the court will know what you’re talking about because a `lives with’ order is just residence with a different name.

Many orders include one of these (but it doesn’t have to – a fact many people seem to miss). It’s also possible for an order for a child to live with both parents (formerly known as a `Shared Residence Order‘).

That said…they confer very little power: They don’t allow the residence parent to be able to call the police to collect the children if their ex partner doesn’t return them, doesn’t give them the sole power to make decisions about the children’s education, medical treatment, etc. if their ex has PR, doesn’t give them the power to change the children’s names or anything like that. Some people are ready to die on that hill and insist that isn’t the case, though!

Just about the only thing it does give them is the ability to take the children out of jurisdiction for up to 28 days without the permission of their ex partner. That’s it.

3.) `Spends time with’ (contact) orders

Totally unrelated to whether someone has PR or not and totally unrelated to whether they have a residence order, shared residence order or no order at all when it comes to residence is contact.

Sorry – I mean a `spends time’ with order. Although it means exactly the same thing and everyone in the legal profession knows what a contact order is (as opposed to custody…) They changed the name to shift the focus away from labelling someone as the “contact” parent. My personal view is that it makes no odds – it’s legally putting lipstick on a pig.

Contact can vary dramatically too.

Communication via letter, email, text or phone counts as contact (albeit `direct contact’). In terms of physical time it can vary greatly too – whether it’s a child seeing a parent an hour a week in a contact centre all the way to 50/50.

Contact orders are tailored to take into account the circumstances of the children and the parties involved. As well as the childs requirements (detailed in the Welfare Checklist) it can also factors in the parents availability, location, wishes and more. I doubt there are two identical contact schedules out there which are the same (even if contact `every other weekend and weekday tea’ seems to be a thing, but that is another story…)

So in this context – if you really want the equivalent of `custody’ and you’re in England or Wales you need:

1. An order for no contact against your ex partner.
2. Your ex-partner doesn’t have parental responsibility for their children—or it may need to be removed.

I’ve seen this ordered before. The court has the power to do this. But it’s rare. People frequently ask for their ex’s PR to be taken away. This is often seen as draconian and is rarely ordered. Even if a parent with PR uses it to cause problems, the court has the power to modify it to prevent that happen.

The bottom line? If you’re trying to do this, you’ll probably end up disappointed.

Note – all these orders are applied for on a C100 form.

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What happens if I ask for custody in court?

I’ve seen this happen, on a number of occasions.

A father I once supported decided he was going to ask for custody, despite everything I’d told him. I’d briefed him, explained to him how it worked and what he needed to ask for to be clearly understood by the judge. Nevertheless…he asked for `custody’. He was lucky – the judge took the time to understand what that meant to him and `translated’ what he wanted ordered. On other occasions I’ve seen it blow up in parents’ face when the court takes the view that the parent asking for it doesn’t know what they want (or what is in their child’s best interests) – never a good look.

It has been harmless at times. On other occasions it’s made my client look like they don’t actually know what they want ordered, nor what is in the best interests of their children. Never a good look for someone who wants to demonstrate they’re a good, child-focused parent.

n short, at best no one is going to know what you actually want. Basically, you’re going to confuse people – and when I say people I mean the judge, the solicitors and everyone else in the room.

They’re going to ask what you mean by `custody’. They’ll ask you what it means to you. How do you want the children to divide their time up?

he court will try to understand how you see the children dividing their time between you and your ex-partner. It will also look at whether you or they have parental responsibility, and whether it needs to make a residence order.

It’s better to go in with a plan.

Because without one it means you may come across as not being sure what is in the best interests of your children. Something simple, easy to understand – and most importantly – child-focused arrangement that the court has the power to order.

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Conclusion

With all this in mind I can sum these conclusions up simply:

1. There’s no such thing as `custody’ if you’re going to an English or Welsh court.
2. Every talks about custody despite this.
3. Ask for custody in court and no one will know what you’re talking about.
4. Focus on how the children divide their time, consider PR and residence.

Hope this helps. Don’t be put off from Googling “custody”—you probably found this post by doing just that. But make sure you’re clear about what you actually want when you’re involved in child proceedings!

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FAQ